CONSUMERS TEMPORARY EASEMENT CASE DISMISSED DUE TO LACK OF JURISDICTION
I successfully argued that Consumers failed to make a proper good faith offer requiring dismissal of a suit in Macomb County Circuit Court seeking acquisition of a temporary construction easement to install a pipeline.
Consumers Energy Company filed a lawsuit in Macomb County Circuit Court seeking to acquire a temporary easement. Consumers wish to use the parking lot of a shopping center at the southeast corner of Van Dyke and 23 Mile Road as a construction staging ground to bore a replacement natural gas pipeline.
I responded to the lawsuit on behalf of a tenant in the shopping center by both challenging the court’s jurisdiction and the necessity for the easement. Following oral argument, the Circuit Court granted the jurisdiction motion, resulting in dismissal of the lawsuit.
MCL 213.55(1) requires that “the agency… shall submit to the owner a good faith written offer.” Consumers argued that “owner” only included owners of record, meaning only owners whose interests appear in the register of deeds. However, this contradicted the holding of the holding of Board of County Road Commissioners for County of Washtenaw v Shankle, 327 Mich App 407, 415-416; 934 NW2d 279 (2019). In that case, I obtained an order reversing a trial court that did not dismiss due to jurisdictional defects. The case required provision of a good-faith offer "to all persons or entities with an interest in the properties.” Id. “In order to initially invoke the trial court’s jurisdiction, strict compliance with the statutory language of the UCPA required that the fee owners and any other owners of legal property interests be given a good-faith offer.” Id., at 417. Shankle held that an agency must provide a good faith offer “to all persons or entities who are interested in the properties.” Shankle does not distinguish between a recorded or non-recorded interest. The words “any” and “all” demonstrate that the holding is broadly inclusive.
Consumers arguments were contrary to other aspects of the Uniform Condemnation Procedures Act. Indeed, MCL 213.55(1) specifically addresses other types of notices required to be provided to holders of leasehold interests. The reality is that tenants, particularly residential tenants, have no motivation to record their interests but are recognized to be entitled to just compensation and other benefits by the UCPA. Additionally, the Michigan Supreme Court has held that failure to provide tenants with a good faith offer before filing a condemnation case would trigger constitutional issues.
Consumers also argued that the tenant received actual notice. In this case, Consumers issued a good faith offer to an entity that does not exist. It was not simply a typographical error, the names were not even close. When Consumers filed the lawsuit, the actual tenant was not named as a party. Consumers attempted to argue various slippery slope arguments, complaining that the impact of such a decision would be that the failure to spell “John Doe” correctly by including or excluding the letter ‘H’ in the name John could trigger a jurisdictional infirmity. Eminent domain has managed to proceed for hundreds of years in the State of Michigan without that type of issue arising. Further, Consumers never acknowledged the requirement that "the laws which regulate such proceedings must be strictly followed" and "observed with much exactness," as was "well settled" in "1876" and "approvingly reaffirmed… ever since." Shankle, at 412-413. Since the case law requires “exactness,” the parties must be named with precision.
Because I prevailed, MCL 213.66 requires Consumers to reimburse my client’s attorney fees.
The necessity issues have yet to be addressed. Now that the case has been dismissed, it is likely that Consumers will modify the requested easement addressing the issues raised in the necessity challenge. This would mitigate the impacts of the taking on the shopping center.
If you have any questions about eminent domain law, please do not hesitate to contact me.